Getty Images, MLSs, and strict liability for copyright infringement

The following is not intended to be legal advice and only describes legal concepts in generalized terms with assumptions about the MLS industry. If you have specific questions regarding your organization, please contact an attorney.

Last week at the 2012 NAR Midyear MLS Executives meeting, NAR General Counsel Laurie Janik gave a nice overview of legal issues MLSs are facing. The two most important issues according to Laurie are (1) the copyright litigation against Neighborcity.com and (2) copyright enforcement by Getty Images against MLSs. Unfortunately, at this time we cannot comment on the ongoing litigation against Neighborcity.com, as we are part of the team representing NorthstarMLS. The second topic – copyright enforcement by Getty Images – merits further discussion. At the heart of the recent actions by Getty Images is the fact that copyright infringement is a strict liability cause of action. While we represent MLSs dealing with this issue, we can comment more generally about the basic legal contours of strict liability copyright infringement.

Copyright infringement is a strict liability cause of action. That is, the mental state of the infringer does not matter. Infringers can be liable for copyright infringement even if they do not have intent to infringe – or even if they don’t know they are infringing – or even if they think they have the right to use the copyrighted work! (Note, however, that the mental state of an infringer may become important when calculating damages.)

Infringement of a copyrighted work can occur in several ways. Copyright owners have a bundle of exclusive rights for their works – they have the right to reproduce the work, create derivative works, distribute the work, and publicly perform the work. If a third party exercises any of a copyright owner’s exclusive rights without the owner’s permission, they are likely infringing the copyright. (Of course this is not black and white. For example, fair use may be a proper defense for the would-be infringers use of the work. Unfortunately, fair use is hotly contested, with most rights owners having an overly narrow view of it, and most laypeople having an overly broad view of it.)

One way that this has recently play out in the MLS context:

Agent A uses a copyrighted photo in a listing without proper permission (e.g., a license).

The MLS copies and distributes the listing to other subscribers, including Broker B. Broker B then displays the infringing photo on its IDX website.

Agent A, Broker B, and the MLS (as well as theoretically any other participant with an IDX website) have now potentially violated the copyright .

The owner of the copyright can theoretically sue Agent A, Broker B, the MLS or any combination of the three for copyright infringement. Fun stuff.

What are brokers, agents, and MLSs to do? As I noted in a previous post, having clean ‘copyright hygiene’ is very useful for helping protect the MLS’s copyright. It is also useful for limiting the MLS’s, subscribers’, and participants’ liability for copyright infringement as described above. Clean ‘copyright hygiene’ is achieved through implementation of proper participant, subscriber, third party data access, and participant data access agreements. Also, MLS rules need to be clear that participants and subscribers will put only content that they have the right to use into the MLS System.

The agreements help MLSs clarify the relationship between the MLS, Agent A, and Broker B in the above scenario (as well as all of the other participants and subscribers). The MLS can require that Agent A give a warranty that it has permission to use items it uploads to the MLS, establish limitations of liability to cap damages, and (most importantly) require Agent A and his/her brokerage to indemnify the MLS, subscribers, and participants for Agent A’s infringing use of third party copyrighted works. With the relationship between the MLS, brokers, and agents clarified, the somewhat strange effects of strict liability copyright infringement causes of action can be limited.

As Laurie noted, even the model participant agreements circulated by NAR in the last few years do not fully contemplate these problems. Talk to your legal counsel about updating them to address this concern.

-Mitch

Reader Interactions

Comments

I am curious about something. I know an artist who uses a camera to take photographs of the web that they see on their computer screen. These photos are not copies of images online (not downloading and republishing), but screenshots that capture an aspect or piece of an online photo – like the eye of the Mona Lisa.

It sounds like the photographer is making derivatives works, which implicates one of the copyright holders exclusive rights (as noted above). I assume the photographer does not have permission from the author of the original works. The question is whether there is an adequate